PSR evidence can be provided in writing rather than via hearing

Last month, Justice Mark Moshinsky rejected a legal claim against the PSR that suggested the committee breached its legal requirements by not completing an in-person hearing.

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Practitioners under PSR review can request to submit testimony and evidence in writing as an alternative to facing ongoing in-person hearings, a PSR spokesperson told The Medical Republic following a ruling by Justice Mark Moshinsky.

But, so far, few have been granted.

Last month, Justice Moshinsky rejected a legal challenge against the PSR from a GP – who had been found to have submitted 148 fraudulent claims – which suggested that the committee breached its legal requirements by not completing an in-person hearing into his case.

During said GP’s investigation, the committee agreed, following a request from the GP’s psychiatrist, that subsequent submissions, witness statements and a final address could be delivered in writing to avoid further distress inflicted by the initial four days of his hearing.

“The interrogatory nature of proceedings, before a PSR committee, started to remind me of the torture I’d suffered as a 16-year-old and started to unsettle me,” the GP told the Federal Court of Australia.

“I had to get out of the hearing room and proceeded to have a complete emotional collapse for the rest of the afternoon.”

Despite extensions, the GP did not submit his written address by the final deadline.

The PSR ultimately found that 148 out of 177 MBS claims it examined in detail were inappropriate and that the GP’s records were not up to par.

According to the ruling, the GP performed “systematic billing of MBS items that require patient attendance without a patient attendance”.

A month following the ruling, the GP filed a legal challenge against the PSR committee claiming that legally it had to hold an in-person hearing following referral of the allegations of inappropriate claims.

“The committee breached [its requirement] after day four of the hearing … as the hearing was never completed in accordance with that section [of the law],” he argued. 

“These breaches were both a denial of procedural fairness and errors of law.”

But last month, Justice Moshinsky found that the requirement to hold a hearing did not mean that “all stages of putting concerns and receiving responses take place at a hearing”.

“Provided that the person under review consents to the process and is afforded procedural fairness, I do not consider that the legislation requires that all stages of putting concerns and responses occur at a hearing,” he said.

“Clearly, there may be cases, of which the present is one, where it may be more sensible and practical for the process of putting concerns and receiving responses to continue in another way.”

Speaking to The Medical Republic, a PSR spokesperson said that there had been other cases when doctors submitted written testimonials in place of in-person hearings.

But these were few and far between and “only when the PSR committee has considered that to do so is in the best interests of progressing the investigation”, he said.

“Committees are required to hold a hearing if they have a concern about possible inappropriate practice.

“In this case, the committee held a hearing and was then able to continue the investigation by other means.

“The judgment confirms the ability of PSR committees to be flexible in how they choose to investigate matters as long as they hold a hearing.”

When asked whether Justice Moshinsky’s ruling meant that doctors under review could request to provide evidence in writing rather than in person, the spokesperson said that the committee “will consider any request asked of them in how to proceed with their investigation” but outlined the benefit to both the committee and the practitioner of in-person hearings.

“It is often important that PSR committees are able to ask questions of the person under review at a formal hearing at which evidence is given under oath or affirmation,” he said.

“By taking evidence in person any misunderstandings, either by the committee or the practitioner, can be cleared up straight away.

“Over a number of hearing days, the PSR committee gets to know the practitioner better and understand their circumstances in more detail and nuance than if the committee only had patient records, billing data, and written submissions before them.

“Even if a PSR committee ultimately finds that the practitioner engaged in inappropriate practice, it will assist the practitioner if the PSR committee can set out in their final report the circumstances in which the services were provided, based on their questioning of the practitioner, so that when the Determining Authority comes to decide the consequences of the findings of inappropriate practice, those matters can be taken into account.”